State of Ohio E.P.A. v. U.S. Dept. of Labor

• Decision Date: 14 November 2000
• Docket Number: No. C2-00-1157.,C2-00-1157.
• Citation: 121 F.Supp.2d 1155
• Parties: STATE OF OHIO ENVIRONMENTAL PROTECTION AGENCY, Plaintiff, v. UNITED STATES of America DEPARTMENT OF LABOR, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

121 F.Supp.2d 1155

STATE OF OHIO ENVIRONMENTAL PROTECTION AGENCY, Plaintiff, v. UNITED STATES of America DEPARTMENT OF LABOR, et al., Defendants.

No. C2-00-1157.

United States District Court, S.D. Ohio, Eastern Division.

November 14, 2000.

COPYRIGHT MATERIAL OMITTED

Jack Wilson Decker, Richard Coglianese, Ohio Attorney General's Office, Columbus, for plaintiff.

E. Dennis Muchnicki, Dublin, Mark Quinlivan, Senior Counsel, U.S. Dept. of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court upon motion of the Plaintiff State of Ohio Environmental Protection Agency ("State of Ohio") for a preliminary injunction. (Doc. # 2). After the filing of Plaintiff's motion, Plaintiff further moved to consolidate the preliminary injunction hearing with the trial on the merits of this action. (Doc. # 4). The Motion being unopposed, this Court orally granted the same at a hearing held on November 6, 2000. Further, on November 3, 2000, the parties reached a stipulation of fact which essentially consists of the record compiled before the Department of Labor in the course of the administrative proceeding described below. The stipulated facts comprise the entire record before this Court.

Upon consideration of the briefs submitted by the parties, a review of the record submitted by agreement, as well as arguments presented on November 6, 2000, the Court orally ruled from the bench that the Plaintiff is conditionally entitled to the injunctive relief requested in Count III of the Complaint, unless within thirty (30) days from the date of this Court's order, the United States Department of Labor intervenes in the administrative process now pending before the United States Department of Labor and seeks relief against the State of Ohio as preliminarily ordered by Administrative Law Judge Thomas F. Phalen, Jr., United States Department of Labor, on October 3, 2000. For reasons more fully described below, the Court finds that the Plaintiff is further entitled to declaratory relief on Count I of its Complaint.

I.

On July 28, 1998, Defendant Paul Jayco, who was employed by the Ohio Environmental Protection Agency in a position known as Environmental Specialist II, filed a complaint for discrimination with the Occupational Safety and Health Administration ("OSHA"). In the summer of 1997, Jayco became the site coordinator with regard to an environmental investigation at the River Valley Schools in Marion, Ohio. The schools had been constructed on a site formerly used by the U.S. Department of Defense and its predecessor agencies during World War II.

Jayco was integrally involved in an investigation to determine whether the incidence of leukemia was higher in and around Marion, Ohio as a result of potential carcinogens deposited on or near the school grounds. While a number of various federal and state agencies were also involved in the site investigation, Jayco was initially designated to coordinate a review of the site and to insure compliance with no fewer than seven federal environmental statutes, including the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2622; the Federal Water Pollution Prevention and Control Act ("FWPPCA"), 33 U.S.C. § 1367; the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300j-9(i); the Clean Air Act ("CAA"), 42 U.S.C. § 7622(a); the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9610; the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851; and the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6901.

Jayco was actively involved in the coordination of the efforts made to investigate environmental contaminants at the site from June 26, 1997 through July 30, 1998. On the latter date, the Director of the OEPA suspended Jayco from employment for a period of ten days and removed him as site coordinator on the Marion project.

Thereafter, Jayco filed a complaint with the OSHA, a component of the Department of Labor. Jayco alleged that the Plaintiff had discriminated against him in violation of the whistleblower provisions contained in the seven federal environmental acts previously referenced.¹ The Secretary of Labor is directed and authorized to promulgate procedures for the handling of complaints of employment discrimination under the various Acts. See generally 15 U.S.C. § 2622; 33 U.S.C. § 1367; 42 U.S.C. 300j-9(i). The Secretary of Labor has promulgated a regulation which states in pertinent part:

(a) No employer subject to the provisions of any of the Federal statutes listed in § 24.1(a) ... may discharge any employee ... because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in this section.

(b) Any employer is deemed to have violated the particular federal law and the regulations in this part if such employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has:

(1) Commenced or caused to be commenced, or is about to commenced or cause to be commenced, a proceeding under one of the Federal statutes listed in § 24.1(a) or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

(2) Testified or is about to testify in any such proceeding; or

(3) Assisted or participated, or is about to assist or participate, in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute.

29 C.F.R. § 24.2.

After Jayco filed his complaint with OSHA, the agency conducted an investigation as required by the foregoing. On December 29, 1999, OSHA determined that the OEPA had violated the whistleblower protection of all seven environmental acts. OSHA directed the OEPA to provide Jayco with full back pay for the ten days he was suspended, to reinstate him to his former position as site coordinator, and to pay attorneys fees which he had incurred. Thereafter, OEPA formally notified the Department of Labor, Office of Administrative Law Judges, that it was challenging the determination made by OSHA and sought a formal hearing as to the findings.

Following extensive discovery between OEPA and Jayco, a two week hearing was conducted by Administrative Law Judge Thomas J. Phalen. On October 2, 2000, Judge Phalen issued his decision directing the Ohio EPA to reinstate Jayco, to pay him $45,000 in back pay, $45,000 in compensatory damages, and $45,000 in punitive damages. The Administrative Law Judge reserved ruling on an award of attorneys fees to Jayco's counsel.

In a lengthy, detailed and thorough Recommended Decision and Order and Preliminary Order ("ALJ Order"), the Administrative Law Judge found that Jayco had engaged in a course of conduct which was protected under all of the seven statutes referenced above. From the early stages of his involvement at the Marion site through the time of his removal as supervisor, Jayco asserted that the OEPA had suspended him from employment and removed him as site supervisor because he had insisted that a detailed investigation be conducted in conformity with federal environmental statutes. (See ALJ Order at 86-89.) Specifically, the Administrative Law Judge found that Jayco's removal from the site and ten day suspension were based on pretextual allegations; the actual motivation for the adverse employment action was retaliation for Jayco's efforts to ensure an investigation in compliance with federal environmental law. Id. at 77-78.

II.

The State of Ohio contends that it enjoys sovereign immunity under the Eleventh Amendment² with regard to a suit filed against it in any federal judicial forum by a private litigant. The State has filed an appeal of Administrative Law Judge Phalen's decision which is now pending before the Administrative Review Board, an agency of the United States Department of Labor. The State contends that the hearing conducted by the Administrative Law Judge and the appeal now pending before the Administrative Review Board represents an action by Jayco himself against an agency of the state. The OEPA, as a state agency, enjoys the same sovereign immunity as the State of Ohio itself. Mumford v. Basinski, 105 F.3d 264 (6th Cir.1997).

The Department of Labor asserts that the proceeding initiated by Jayco does not represent the exercise of judicial authority and is therefore not barred by the Eleventh Amendment. While the Department of Labor agrees that Jayco may not himself enforce a decision of the Department of Labor in a federal court created under Article III of the Constitution, given the limitations of the Eleventh Amendment, it submits that an enforcement action filed by an agency of the United States of America against one of the several states is not barred by the Eleventh Amendment.

While Jayco also advances the position taken by the Department of Labor, he further claims that the whistleblower statutes may be asserted by an individual against the state, notwithstanding the Eleventh Amendment. According to Jayco, the whistleblower statutes essentially protect First Amendment rights regarding freedom of speech. If Jayco is correct, the Eleventh Amendment does not bar a private action in federal court against a state, if Congress has enacted a federal claim under its authority derived from a later provision of the Constitution, the Fourteenth Amendment.³

This Court's analysis of the claims presented by the parties begins with consideration of the Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Therein, the Court held that the Eleventh Amendment bars an action by a private party against a state in federal court if the action is based upon a federal statute enacted pursuant to Article I of the Constitution. For purposes of the instant case, Seminole holds that an act of Congress passed pursuant to its Interstate Commerce...